Poletti & Vella [2025] FedCFamC2F 796 (22 May 2025)

1. The Independent Children's Lawyer be discharged.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

(delivered ex tempore, revised from transcript)[1]

1. This matter concerns the parenting arrangements for X born in 2009 ('X'), Y born in 2019 ('Y') and Z born in 2021 ('Z') (collectively, the 'children').

1. By way of background, the parents met in Country B in 2001. Subsequently, the father relocated to Australia.
2. In 2003, the parties' eldest child Mr C ('Mr C') was born.
3. In around late 2003, the mother made an application for an intervention order against the father. It appears that application was either not pursued, or not successful.
4. In 2004, the father commenced proceedings in the Family Court of Australia, however shortly thereafter, the parents reconciled.
5. X was born in 2009.
6. Y was born in 2019.
7. On around 17 July 2020, the mother left the relationship. She took the children with her. She engaged the assistance of the D Organisation to do so.
8. Z was born in 2021.
9. The children have not seen the father for five years, and the father has never met Z.

1. The father filed an Amended Application on 1 May 2025, a mere eleven days before the commencement of the trial. In the Amended Application, the father sought, among other things, the following:

(a) equal decision-making responsibility for Y and Z;

(b) that X spend unsupervised time with him in accordance with her wishes; and

(c) that he spend time with Y and Z on the following basis:

(i) four occasions at a supervised contact centre, and following the completion of this time;

(ii) unsupervised time for a period of two months each Saturday from 12pm until 6pm, and following the completion of this time;

(iii) unsupervised time for a period of four months from 10am Saturdays until 6pm on Sundays, and following the completion of that time;

(iv) that Y and Z live with each party on a week about basis.

1. Notwithstanding that this matter has been in this court for over two years and that he filed the Amended Application a mere eleven days before the trial, the father on the first day of the trial indicated that he sought different orders from those set out in the Amended Application. A formal application to vary the Amended Application was heard and granted on the second day of the trial. Accordingly, the father seeks, among other things, the following:

(a) equal decision-making responsibility for Y and Z, with the parties to communicate using a parenting app;

(b) that he spend time with X every second Sunday for two hours at a contact centre for a period of six months, and thereafter, he spend time with her in accordance with her wishes;

(c) that he spends time with Y and Z on the following basis:

(i) for four occasions at a supervised contact centre, and following the completion of that time;

(ii) supervised time for a period of three months every second Saturday from 12 noon until 6pm, and following the completion of this time;

(iii) supervised time for a period of four months every Saturday from 12 noon until 6pm and every Sunday from 10am to 6pm; and

(iv) unsupervised time every weekend from 10am Saturday until 6pm on Sundays.

1. While the outcome ultimately sought by the father was able to be clarified, what was less clear was how the father put his case, or to put it another way, why it was that it was in the best interests of the children to spend time with the father as proposed by him. The father's case outline was effectively one page of brief bullet points, devoid of meaningful submission or content. Closing submissions from his counsel did not meaningfully enlighten the court as to why the orders that he sought are in the best interests of the children. The high points of the father's submissions were that he was asking for a modest increase in time, that it was important that the children have two parents present, and that it was important that the children have a relationship with their father. The allegations of family violence made by the mother against him were derided by the father as lies.
2. The father's trial affidavit did little to illuminate the way in which he put his case. Approximately seven pages of his ten-page trial affidavit is devoted to recounting the history and development of his relationship with the mother. There, he makes various allegations including that the mother's parents interfered in the marriage, that the mother's cousin assaulted him, that the mother told him she was getting coerced by her father, that the involvement of her parents in the marriage was emotionally draining, and that the mother did not get on well with his parents when they came to visit. I queried the relevance of much of this material with the father's counsel, and did not receive any adequate explanation. Much of this material is plainly not relevant to the father's case or the best interests of the children. Tucked away in his affidavit, but not emphasised in the case, is the apparent allegation that the mother has fallen under the influence of her parents, which has in turn led to the separation of the parties, and the mother alienating the children from the father.
3. The mother's position, among other things, was that she be given sole decision-making responsibility for the children, that they live with her and spend no time with the father. Her case is put on two bases. First, that the father is an unacceptable risk to the children, having regard to, among other things, the family violence he subjected her, Mr C and X to, and the resultant trauma they have experienced. Second, that permitting the children to spend time with the father will compromise her health and ability to care for the children.
4. The ICL supported the orders sought by the mother.
5. The father relied on his case outline, his trial affidavit affirmed 1 May 2025, and his reply affidavit affirmed 9 May 2025. The mother relied on her case outline and her trial affidavit affirmed 28 April 2025. Both parties were subject to cross-examination. The parties submitted a short tender bundle at the end of the hearing that was admitted into evidence. The court also admitted into evidence the Child Impact Report of Ms E dated 6 October 2023, the psychological evaluation by Mr F of the father dated 11 July 2024, and the psychological evaluation of the mother by Ms G dated 21 May 2024. None of these experts were called for cross-examination. Consequently, their reports contain evidence that is unchallenged by cross-examination.

1. Section 60CA of the Family Law Act 1975 (Cth) ('Act') provides that I must regard the best interests of the children as the paramount consideration.
2. Section 60CC of the Act sets out the matters that I must consider in determining what is in a child's best interests. There are general considerations set out in subsections (2) and (2A), as well as additional considerations that apply to Aboriginal and Torres Strait Islander children in subsection (3).
3. Section 60CG(1) of the Act requires the court in considering what order to make, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
4. This is a case that raises the question of whether the father poses an 'unacceptable risk'. In Isles & Nelissen [2022] FedCFamC1A 97 at [50]- [51], a five-member bench of the Full Court endorsed as a correct statement of the law, the following statements of Austin J in Fitzwater v Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 at [138] - [142]:

[138] The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.

[139] Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children's sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

[140] It cannot be correct that the unacceptable risk of a child's sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]-[61]; Johnson v Page [2007] FamCA 1235; (2007) FLC 93-344 at 81,888-9; [2007] FamCA 1235 at [68], [71], [76], [77]).

[141] Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the "access" order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father's appeal was dismissed because the possibility of the child's past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child's future sexual abuse.

[142] As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

1. Division 2 of Part VII of the Act deals with parental responsibility. Section 61B of the Act defines 'parental responsibility' in relation to a child as meaning 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'.
2. Section 61C(1) of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. Subsection 61C(3) provides that subsection (1) has effect subject to any order of the court.
3. Section 61D deals with parenting orders and parental responsibility. Section 61D(1) of the Act provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities and authority in relation to the child. Subsection (2) provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any, expressly provided for in the order, or necessary to give effect to the order. Subsection (3) provides that a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child may provide for joint or sole decision-making in relation to all or specified major long-term issues.
4. The term 'major long-term issues' is defined in section 4 of the Act.
5. While section 61D(3) of the Act permits a Court to make an order for joint or sole decision-making in relation to all or specified major long-term issues, the Act does not expressly set out the matters the court is required to take account of in determining whether a person should be given sole decision-making in relation to all or specified major long-term issues. While I was not addressed on this issue, absent any express provision in the Act, whether a person or persons are to be awarded sole or joint decision-making is a matter to be determined having regard to the paramount principle of what is in the best interests of the child.
6. I intend to approach this matter consistently with the principles set out above.

1. The manner in which the evidence emerged during the trial necessitates the need to make some comments, observations and findings about the witnesses.

1. The father's evidence and the manner in which he gave it is highly problematic for his case.
2. Aspects of the father's evidence were plainly internally inconsistent.

(a) The father deposed in his affidavit affirmed a mere eleven days before the trial that he had 'no outstanding police matters'. In the witness box, he confirmed that there was an outstanding matter before the courts where he was charged by the police for an unlawful assault of a homeowner. He refused to provide details of charges he faced.

(b) The father was questioned about hiding the belongings of the mother and the children on separation. In his reply affidavit, the father disagreed that such a thing had occurred. Then, under cross-examination, he told the mother's counsel that the belongings were placed in storage. When counsel for the mother read to the father an extract from a police record that indicated that the father told the police he took the belongings to a Salvation Army bin, the father stated that they were shoes that were old, but then changed his answer. When counsel for the ICL asked him about the issue, the father confirmed he told the police he had taken the belongings and uniforms to the Salvation Army bin, but then he denied doing so.

1. Aspects of the father's evidence were not only internally inconsistent, but also inconsistent with other objective evidence, and furthermore, defied belief and ordinary human experience. The father was questioned about an incident in November 2024 when he approached the mother at the Coles supermarket at Suburb H. In his reply affidavit, he said simply that he disagreed with this, and he offered no alternative explanation. Questioned in the witness box about it however, he acknowledged he was present at the supermarket. Asked why he was there, he claimed he was there to meet a friend. He provided no further details. His evidence on this point is internally inconsistent. It is inconsistent with evidence given by the mother who viewed CCTV footage obtained under subpoena that does not show the father meeting anyone in the supermarket, and shows him leaving the supermarket empty handed. The father's evidence also defies knowledge of ordinary human experience. It stretches to credibility to believe that any person would select the inside of a supermarket as a location to meet a friend.
2. The father's evidence was inconsistent with the evidence of other witnesses in the case where the father elected not to call those witnesses for cross-examination or challenge their accounts.

(a) At paragraph [9] of her report, Ms E noted that the father had 'declined further professionally supervised contact' with the children. In his affidavit, the father deposes that 'there was a clear misunderstanding about my unwillingness to commence spending time with the children on a supervised basis'. He stood by that claim in the witness box. There are problems with the father's evidence on this issue. First and foremost, the father did not seek to cross-examine Ms E. Her evidence on that point is unchallenged by cross-examination. Further, the father adduced no evidence to support the claim he now makes that he was misunderstood. No subpoena was issued for Ms E's notes. There is no evidence of any complaint ever being made to the court or the Court Children's Service. The father never brought any formal application to the court to deal with the issue he now raises.

(b) At paragraph [68] of her report, Ms G notes that the father 'was aggressive on the phone when contacted to reschedule' his psychological evaluation. Questioned about this, the father denied he was aggressive. Again, there are problems with the father's evidence on this issue. The father did not seek to cross-examine Ms G, and her evidence on that point is unchallenged by cross-examination. The father did not issue any subpoena for the notes or records of Ms G.

1. The father's evidence disclosed a failure by him to comply with court orders and the instructions of the ICL.

(a) The court made an order on 14 December 2023 that the parties each obtain a psychological assessment and risk assessment from J Centre, or such other psychologist as nominated by the ICL. The ICL nominated Ms G. The father never went to Ms G, and instead attended upon Mr F at J Centre, despite being given the instruction to attend Ms G. Questioned about why he did not attend upon Ms G, the father stated that he elected not to see Ms G because she was 'not very well experienced'.

(b) The father was asked about whether he had completed the 'Caring Dads' course. The court had made an order that he complete such a course on 24 October 2023. Questioned about this, the father said he had completed the course and had provided the ICL with a certificate. Examination of that certificate by the ICL at the bar table revealed that the certificate produced by the father indicated he had completed a course in 2004. When questioned further about this, the father said that he was not going to do what the court ordered because he didn't believe he needed to do it.

1. The father was asked whether he had anything positive to say about the mother's parenting. He stated initially that she was a good mother who had been good at breastfeeding and changing nappies. He offered no other positive observation. The father then stated that the mother was a compulsive liar who had made false accusations against him. He labelled the mother a liar on more than one occasion during cross-examination. He also blamed the mother for the breakdown of his relationship with Mr C and X and claimed that the mother had manipulated the children through her 'tears'. Challenged by the ICL that he seemed to denigrate the mother with every word, he effectively agreed, saying it is because every word she is saying is a lie.
2. The father's conduct in this court requires comment. In the witness box, he failed to answer questions directly and interrupted exchanges between the bar table and the bench despite repeated reminders not to do so. He sought to interject in court proceedings from the gallery and had to be reminded to keep quiet. He constantly sought to instruct his barrister, rising on multiple occasions to walk toward the bar table to give instructions or drop off documents, which resulted in minor interruptions to his barrister, and on occasion to the conduct of the proceedings.
3. The matters to which I have referred above lead me to the following conclusions.
4. First, the father was not a credible witness and his evidence is not credible. The court generally attempts to refrain from making specific adverse credit findings against litigants if the case can be legitimately disposed of another way: Carlson & Fluvium [2012] FamCA 32 at [165]-[169], quoted with approval in Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622 at [89]- [90]. Regrettably, the credit findings here are necessary. The father gave evidence that was inconsistent with his earlier statements. He gave evidence inconsistent with other unchallenged expert evidence. When confronted with difficult issues, he blamed others for his conduct, including Ms E, Ms G, and his own lawyers. The impression I formed was that the father was making up his answers in the witness box, on the run.
5. Second, the father had more than just a tendency to blame others for the issues that confront him. He appears to me to be practised in the art of blaming others when things do not go his way, and deflecting responsibility for his own actions.
6. Third, the father's conduct during the trial leads me to the view that he lacks any self-control and has little to no self-awareness. He could not conduct himself appropriately in court, despite various reminders that he do so. His inability to control himself in court means I have no confidence that he could control himself outside of the courtroom, for example, when dealing with the mother or the children. He displayed what can only be described as a stunning lack of self-awareness to, on the one hand, label the mother a liar and a manipulator, but on the other hand, assert that he could make joint decisions about the children with her. His lack of awareness and insight was also on display when he asserted that X was not scared of him and that he had a 'perfect' relationship with her, despite X's statements to both Ms E and the ICL.

1. The mother was softly spoken, considered and, for the most part, composed in the witness box. She maintained her composure notwithstanding interruptions and gesticulations from the father in the public gallery. The narrative that she provided in the witness box was consistent with that set out in her affidavit. It was also consistent with the narrative that she had provided to both Ms E and to Ms G.
2. The mother's evidence was also powerful and compelling. It was never more compelling than when she recounted in detail the physical abuse and emotional torment suffered by Mr C at the hands of his father. Questioned further about the veracity of her evidence, she stated quietly and in a dignified manner, 'we all lived it'. It was while giving evidence about Mr C that the mother lost her composure briefly. The torment she expressed and displayed was all too real in the words she used, in the way her body shook, and in the way she sobbed. It is plain that the fear she expresses of the father is genuine. She impressed as both a credible and courageous witness, and I have given her evidence considerable weight.

Arrangements that promote the safety of the child and each person who has care of the child

1. The mother deposed to significant family violence perpetrated on her and the children, including the following:

(a) at the start of their relationship, the father was possessive and paranoid and would sit in her university lectures to monitor her. The father was questioned on this and said that he was there to protect her from her cousins;

(b) the father kept all of her passwords for things such as emails, internet banking, mobile phones, and savings cards, so that he could monitor and regulate her activity. He also switched off the internet modem and put a parental lock on the television which only he could operate. The father denied this allegation and countered that it was the mother that controlled all passwords for banks, emails and the like;

(c) that the father had a short temper, was quick to anger, and it would take very little to send him into a fit of rage. The father denied the allegation in his reply affidavit;

(d) the father believed Mr C was plotting to kill him and that the mother was a secret agent assigned to assassinate him. He often could not control these thoughts and would become violent towards them, sometimes experiencing 'blackouts' and fits of rage. The father denied these allegations;

(e) on one occasion in 2020, the father became angry with X, called K Organisation, threatened to send X into foster care, and told the person on the phone that X, his own child, was 'Satan'. X heard the conversation and broke down crying. The father also called X 'Satan' on other occasions. The father denied these allegations in his reply affidavit;

(f) the father cut up Mr C's sports uniform. The father denied doing so in the witness box;

(g) the father broke X's toys, and would demand she wear a jumper even when hot;

(h) when Mr C was approximately 16 years old, the father prohibited him from taking off his jumper despite the hot weather. When Mr C tried, the father hit him in the face, causing a bruise. I note that whilst the father filed a reply affidavit in which he sought to deny many of the mother's allegations, he did not deny this allegation;

(i) in July 2020, the father attacked Mr C, pinned him to the ground and physically assaulted him. X was covering both of her ears and screaming for the father to stop. The father denied this in his reply affidavit and in the witness box, and claimed that it was the mother who attacked him from behind when he was spending time with Mr C;

(j) on separation, the father hid the belongings of her and the children; and

(k) in September 2024, the father confronted the mother at the Coles supermarket in Suburb H, where he demanded that she collect some papers and berated her. The mother deposes the footage she obtained under the subpoena shows the father entering and leaving the supermarket empty-handed. As I have noted, questioned about this, the father said he was there to meet a friend.

1. In the witness box, under cross-examination, the mother gave, unprompted, an account of family life with the father. Her evidence was arresting and compelling:

On multiple occasions, [Mr Poletti] has accused [Mr C] of looking at him in a way where - is he plotting to kill him and when [Mr C] tried to explain himself - when [Mr C] tried to explain himself that, "No, I'm not looking at you. Well, how am I even looking at - I wasn't even looking at you," and, like, instantly [Mr Poletti] will charge to his face and get so close and scream at him and - and tell him to shut up and stop arguing and answering back, and [Mr C] would say to me that he - he feel his - his spit on his face and if he was to - to wipe it, he - he would offend him more and then that's when he would become physical. He would start off by holding his - his clothes, lift him up. On occasions he - he threw him on the floor and pinned him down and made a fist and - and - yes, on multiple occasions I would have to stand in between them to prevent him from hitting him.

...

However, because of [Mr Poletti] and him abusing staff members, multiple staff members in the school, we received a letter. They gave the letter to [Mr C] and they said pass this on to your Father, and he wondered what it was. When [Mr Poletti] read the letter, it said that [Mr Poletti] had to go and attend to school. There was a - they were going to conduct a meeting and [Mr Poletti] had to apologise for all his aggressive, threatening behaviour and promise the school that behaviour like that won't reoccur for the safety of staff and other students, because he was doing it in front of the students too. [Mr Poletti] said he would rather die but (sic) to go and apologise, and he said "Who are they for me to go and apologise? We will just take him out and put him in a public school." I remember I broke down. He said, "Dad, look, this is my future. Don't play with it. I've tried so hard. I've come this far. Don't ruin it." He didn't listen to him. And he said to him just to shut up and just go away. And he said he's the dad and he will do whatever he wants. And he did. We had to pull him and put him in another school. He was just so upset because the school that he was attending was an IB curriculum, and international curriculum. So he was in a different curriculum and he already had started because they start at year 10. So all that effort went wasted because he had to go into a VCE curriculum and the subjects that he was doing there were not offered in his new school. So he had to restart again. He was so unhappy. And before we left, we had about a term. We were with [Mr Poletti]. And he had [SACs] that he had to attend in year 11. And some of these [SACs], he actually had to go with no sleep because there was - because his dad was like angry at him for not choosing a subject that his dad was dictating. [Mr C] would say to him, "Look, dad, this is - I - I don't feel comfortable doing this subject. Can I just choose these subjects?" And he would say to him - that he would put him down saying - "Are you - are you dumb? I'm sure you can do it."

1. X spoke directly to Ms E about what she experienced. Ms E reported that X spoke of her general experience of family life 'including several instances of verbal, emotional and physical abuse inflicted on her mother and older brother by the father prior to separation'. X recalled the father 'making hurtful comments to her about her clothing and appearance and demanding for her to cover herself up'. In respect of these matters, Ms E stated that overall, X's presentation 'in conjunction with her hospital admissions for self-harm and eating related difficulties indicated that she would be at risk of significant destabilisation if forced to see her father at this point in time'. I accept this evidence.
2. The court notes the following with respect to intervention order applications in this matter:

(a) in mid-2020, the mother applied for an interim intervention order for the protection of herself, X, Y and Z. An order was made against the father in the Magistrates' Court. In late 2020, the mother made an application to vary the order, removing Z as a protected person, which was granted;

(b) in mid-2021, a final intervention order for the protection of Mr C was made against the father in the Magistrates' Court. The order expired in 2023;

(c) In late 2021, the mother applied for a final intervention order for the protection of herself, X, Y and Z. The order was sought against the father. The order was made by consent and without admission. The order expired in mid-2022. Subsequently, in mid-2022, the mother made an application to extend the order. A subsequent interim intervention order was granted. In late 2022, the mother made a further application to extend the order. The application was granted;

(d) In early 2023, an application for an intervention order was made by the mother against the father in the Magistrates' Court, with the mother, X, Y and Z being listed as protected persons. The application was refused, however, a further application was made in early 2023, and an interim intervention order was granted; and

(e) in early 2024, both parties made an application for intervention orders. Both applications were refused.

1. As I have noted earlier, the mother, in addition to the evidence she gave of family violence, gave evidence of the father making threats to staff members at Mr C's previous school which required Mr C to move schools.
2. The allegations made by the mother are serious and the Court must be satisfied on the balance of probabilities that they occurred. Section 140 of the Evidence Act 1995 ('Evidence Act') deals with the standard of proof in civil matters. Subsection (1) provides, among other things, that the Court must find the case of a party proved, if it is satisfied that the case has been proved on the balance of probabilities. Further, subsection (2) sets out the matters that the Court may take into account in deciding whether it is so satisfied.
3. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, the High Court discussed how clear evidence is required to prove a serious allegation against a party. The High Court stated at pages 449 - 450:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

1. I accept the evidence of the mother in relation to the incidents referred to in paragraphs [42(a), (b), (e) - (k)] above and find the father engaged in that conduct, as alleged. The mother is a credible witness. Her evidence is internally consistent. Her evidence in the witness box was compelling. Moreover, the following matters lend weight to the mother's account. These include the following:

(a) the intervention orders obtained by the mother, a matter that I will come to below;

(b) Mr C's application for an intervention order against the father;

(c) the mother's presentation to Ms G and Ms E;

(d) X's reports of the father's physical and other abuse and violence;

(e) Ms G's report of the father being aggressive towards her;

(f) Ms E's observation of the father becoming combative at the end of her interview with him;

(g) the court's own observations of the father's conduct, in particular his lack of self-control;

(h) reports that the father is facing pending charges from the police for assault;

(i) Ms E's assessment that X's health is at risk of destabilisation if brought into contact with the father;

(j) Ms G's assessment of the risks to the mother's health if the children see the father; and

(k) Mr F's assessment (see below) that the father potentially has a delusion disorder and that he falls in the moderate risk category for violent recidivism.

1. I am not satisfied that the conduct alleged at paragraphs 42(c) and (d) occurred. The mother's evidence in respect of those matters lacked detail and particulars.
2. The father has, therefore, committed family violence within the meaning of the Act. I note that at least one instance of the father following the mother has occurred recently in September 2024.
3. The mother deposed that she remains fearful of the father as do the children. She consistently reported this fear both to Ms G and to Ms E. Ms E notes that the mother presented as fearful of the father. She described the mother as 'generally highly distressed throughout interview when talking through her and the children's historic experience of alleged abuse from the [father] and the current fears around his court application'. Ms G noted that the mother, when discussing the relationship with the father, 'exhibited a trauma response and sobbed heavily while shaking'. The court itself observed first-hand the reactions of the mother when giving evidence. I have no doubt that the mother genuinely fears the father. I have no doubt that she holds genuine fears for the safety of the children should the father be permitted to see them under any set of circumstances.
4. Mr F assessed the father's family strengths and needs. He stated that the father:

...potentially maintains a delusional false belief. Based on the balance of the father's identified parenting strengths and needs ratings, his psychological and psychosocial risk factors are estimated to fall in the moderate-high risk range currently.

1. Mr F notes that the father also falls into the 'moderate risk category' for violence recidivism which meant that 'he will require a moderate level of supervision and resources to address this risk'.
2. Mr F goes on to note in his report that the risks he has identified 'could potentially increase, however, should the [father] be experiencing a Delusional Disorder'. Mr F concludes by stating that 'commencing time between [the father] and the subject children does not currently present as appropriate, whilst the concerns identified are further evaluated'. Mr F also noted that if the court considered the father's narrative was not plausible, psychiatric assessment was recommended for a diagnostic opinion in relation to a potential Delusional Disorder.
3. Mr F's evidence and recommendation above is unchallenged by cross-examination and I accept it. The father has not adduced any evidence of any steps he has taken to address the risk of violent recidivism. He has not adduced any evidence of any steps he has taken to obtain a further evaluation of a potential delusional disorder.
4. Ms G assessed that there was no indication that the mother's time with the children should be restricted or limited. Ms E noted that the mother was child focussed. There are no concerns for the children in the care of the mother according to the independent experts, Ms G and Ms E.
5. This is a case in which the evidence points to a risk to the health and welfare of the mother if the father is permitted to spend time with children. Ms G noted in her report the observations of the mother which I have set out earlier. Ms G then also states as follows:

... if it is deemed appropriate by the [court] for the father to spend time with the children, this will likely cause additional distress for [the mother] and as such her symptoms may become more severe, which could impact her capacity to parent effectively.

...there is a need to protect [the mother's] psychological functioning, and there is a concern that further involvement with the father will have a detrimental effect on her mental health and therefore her parenting capacity.

1. [Ms G also referred to observations in the report of Ms E, including as follows:]

...there are concerns for [the mother] becoming de-stabilised (sic) by forced spend time for [Y] and [Z] which could negatively affect children. [The mother appears to] hold ongoing fear of [the father]; there is little scope for the establishment of a co-parenting relationship.

1. The evidence and findings I have made above are sufficient to establish that the father is an unacceptable risk to the children. He has a history of committing appalling family violence upon the mother and his children, and that includes Mr C. He has followed the mother post-separation to the Coles supermarket at Suburb H. He has been subject to intervention orders post-separation. Aside from the physical acts of violence, stalking and verbal abuse, it is clear that the mother and X carry the emotional scars and consequences of his conduct. Each is fearful of him. He shows limited to no insight into his conduct or the effects it has had on X and the mother. He has taken no steps to properly evaluate his mental health. He has taken no steps, despite court orders that he do so, to engage in courses which might broaden his perspective or educate him about the effects of family violence and appropriate interpersonal communication. His behaviour in the courtroom confirms that he has an inability to control himself and his emotions, and his answers during the trial to questions that arose show he accepts no responsibility for his actions.
2. Against this backdrop, the father contended that supervision of his time is the salve that will ensure the children are adequately protected. I accept that supervision of the children's time with the father will eradicate any risk of him physically abusing or verbally abusing the children. Supervision would not, however, satisfactorily address the risk of psychological harm or emotional harm that the children might suffer. In this regard:

(a) supervised time will not protect the children from the psychological or emotional harm that will arise from being thrust into the centre of the relationship between their mother and their father. The mother holds grave fears for the safety and wellbeing of the children. Her concerns for the children when with the father will likely have an impact on the children and their ability to reconnect with the father. The position in which the children will find themselves will likely be one of confusion mixed with fear and trepidation. This is a situation likely to be confronted by all the children, including Y and Z, who will be undergoing a process of actively being introduced or reintroduced to their father.

(b) X has made clear she does not wish to see her father. The unchallenged evidence of Ms E is that X, who has made such good progress on her mother's watch, would be at risk of significant destabilisation if forced to see the father.

1. Supervision also does nothing to eliminate or reduce the risks to the mother's mental health and her parenting capacity. There must be a sound basis to reach the conclusion that a child spending time with or communicating with a parent would cause the primary carer such distress that his or her capacity to properly care for the children would be impaired. Here there is such evidence, including the evidence of Ms G, to which I have referred, the observations of both Ms G and Ms E of the mother, and the court's own observations of the mother.
2. Finally, while the father proposed supervision of his time (at least initially), I am not satisfied that he genuinely understands what it entails or that he was genuinely accepting of it. He offered no evidence in chief about contact centres or supervision services he had contacted. He had no knowledge of whether the periods of supervision he was proposing could be accommodated by any supervisor. He had no knowledge of the cost of supervision. He led no evidence that he could meet the costs of supervision that he was proposing, in circumstances where he deposed under cross-examination that he earned somewhere between $34 per hour and $38 per hour as a transport worker. I more than suspect that the father's real position in respect of supervision is what he articulated to Ms E at the time of the Child Impact Report; that he dislikes and is resistant to supervised contact. If he doesn't feel the need to attend a court ordered Caring Dad's course, he is more than likely to feel he does not need supervision of his time.
3. The father makes allegations of family violence against the mother. He deposed in his affidavit that the mother had hit him on the back of the head, threw items at him during the course of the relationship, controlled all the passwords for the banks, emails and social media. Such evidence is easily addressed. In Kilpatrick & Kilpatrick [2017] FamCA 432 at [43], Justice Austin had this to say about a similar situation that confronted him, and his Honour's comments are apposite in the present case:

Regardless of its truth, the father accepts the children should live with the mother. He cannot assert they need protection from harm they may suffer through abuse by the mother or their exposure to family violence she commits, while simultaneously maintaining they should live with her. The two propositions cannot logically stand together.

1. In any event, I am comfortably satisfied the mother did not behave in the ways the father alleged. The father's evidence about these matters is wholly unparticularised. He is an unreliable witness and his evidence generally and on this point is simply not credible. The father's evidence is inconsistent with my observations of the parties in the witness box. I do not accept that a man who presents as the father did in the witness box (and generally in the court), who ignores court orders because he does not believe he needs to do what is ordered, would allow himself to be assaulted by his physically smaller wife, or allow himself to be controlled by her. To this evidence may be added Ms G's assessment of the mother. Ms G assessed the risk of the children being exposed to neglect or abuse in the care of the mother as being low. Ms G also noted that the mother was currently engaged with ongoing psychological support for herself and had engaged a range of professional services for the children. The mother is not a risk to the children. Ms E noted that the mother was child focussed.
2. To the extent that the father's case is one that the mother has alienated the children from him (a point, I should say, that was not at all made clear by the father or his counsel), that proposition cannot be accepted. His evidence to the extent that he asserts alienation is both sparse and unparticularised. He is not a credible witness, and there is not any objective or independent evidence to vindicate his belief.

1. In her report, Ms E recorded that X 'was firm and absolute in her views that she was highly resistant to spending time with the father and experiences ongoing [fears about] being followed or contacted by him'. The ICL confirmed that she had spoken to X, and that X had confirmed that she does not wish to see her father. Given X's age and her experiences with the father, I give these views significant weight. Y and Z were too young to express any view to Ms E.

The developmental, psychological, emotional and cultural needs of the child

1. The mother's evidence is X has previously had poor mental health. She has had regular support mostly from the Child and Adolescent Mental Health Service and more recently from L Organisation. She has self-harmed and been hospitalised previously, and has experienced an eating disorder. X has been treated for depression and anxiety. Due to her complicated mental health, her attendance at school has not been as consistent as it should have been. I accept this evidence. It is consistent with what the mother told Ms E. Ms E commented that X's emotional development appears to be significantly affected.
2. The mother's evidence is that Y has a speech delay and received NDIS funding for an occupational therapist. The mother says that Z is meeting all of her developmental milestones. I accept this evidence. It is consistent with what the mother told Ms E.
3. In her report, Ms E noted that both Z and Y are in an age group that requires predictability, structure and routine. She opined that toddlers are:

...at risk of regression and emotional instability when there is an expectation for them to navigate the meeting of a parent for the first time. Children of this age need a primary home, and if [the father] was reintroduced to the children prematurely and this reconnection was unsuccessful, children could exhibit heightened distress and confusion should they have to navigate his absence again.

1. Having stated that, Ms E also noted that 'long term estrangement from the father also has the potential to significantly affect the trajectory of [the children's] long term emotional and psychological functioning and their identity development'.
2. The mother says that while the children, particularly X, have had challenges, things have improved, particularly in the last year for X, and that the children are currently in good physical health and enjoy stable mental health. I accept this evidence.
3. During the trial the father submitted that it was important for him to be involved with the children to, effectively, encourage their religious upbringing. I give this assertion no weight and do not accept it. The father had nothing to say about religion in his evidence in chief. It appears to be an example, again, of the father making up his case as he goes.

1. The mother states in her affidavit that she undertook the overwhelming majority of the caregiving responsibilities for the children, as well as working during most of the marriage. The father says he would always help care for the children by changing the nappies, bathing them and taking them places.
2. The mother is clearly a capable parent. She ultimately took the difficult decision to separate from father and to establish a new life for herself and her children. She has been the primary carer of the children for the last five years without assistance from the father. She has taken steps to address the various difficulties that X and Y, in particular, have. Ms E noted that the mother was child focused and invested in the children having ongoing access to their individual health supports which will help them to navigate their development.
3. The father has not seen the children for five years. He has no current awareness of their needs, desires or wants, or the challenges his children face.
4. The father seems not to believe that X has any mental health issue. In his affidavit, he states that X's mental health issues arose after separation. In the witness box, he stated that he did not know whether X had mental health issues, and then stated that he had never seen any issue with his daughter and that it was hard to believe the reports. Plainly, his inability to accept that his daughter has any mental health issue means he cannot be relied on to appropriately care for her, or even to conduct himself in a sensitive manner around her.
5. Ms E noted that the father was highly driven to establish a relationship with his children, however, 'he tended to demonstrate a general lack [of] child-focus and openly rejected the idea that [X]'s eating disorder was legitimate. He seemed more disturbed by her difficulties rather than able to support and understand her experiences and need'. Ms E also noted that the father was 'not receptive to being challenged', or 'open to taking [on] professional guidance' and 'became combative at the end of the interview... which also further illustrated some potential personality vulnerabilities and a lack of child-focus'.
6. The evidence in this case leads to the inexorable conclusion that the father lacks insight into his own behaviours, lacks insight about the needs of his children, and has limited parenting skills or capacities. Emblematic of his lack of insight or parenting capacity are his lack of self-reflection, his inability to accept responsibility for his actions, his inability to accept the medical difficulties experienced by X, his decision to pursue supervised time with X despite her clearly articulated wishes and her age, and his inability and his resistance to engaging support for himself, be it support for his mental health or support to enhance his abilities as a parent.

The benefit to the child of having a relationship with parents and others

1. It is accepted that there is a benefit to children of having a relationship with both parents. Insofar as the father is concerned, as Ms E notes, long-term estrangement from father has the potential to significantly affect the trajectory of Y and Z's long-term emotional and psychological functioning and identity development. I accept that to be the case.
2. There is no relationship between the father, Y and Z. The question is whether the court should make orders to give Y and Z the opportunity to develop that relationship with their father. The advantage to the children of having a relationship with the father must be balanced against the risks to safety posed by the father. The Act makes clear that a relationship with a parent or significant other should only be permitted or encouraged 'where it is safe to do so'.
3. I have set out earlier the reasons why the father is an unacceptable risk to the children. I have also set out earlier why supervision does not ameliorate that risk. Those risks of harm to which I have referred weigh more heavily - much more heavily - than the risks that the children might suffer long-term psychological harm as a result of the loss of the relationship with their father. In my view, it is not safe for these children to have a relationship with their father. It is difficult to see what benefit the father could bring to the children, given his past conduct and given his limited ability to self-reflect or seek assistance.

1. For the reasons set out earlier, the father is an unacceptable risk to the children. There is no satisfactory way in which that risk can be ameliorated. Contact between the father and the children also poses a risk that the mother's welfare and parenting capacities may be compromised. There is no satisfactory way in which that can be ameliorated. In the circumstances of this case, and balancing all of the considerations to which I have referred, it is in the best interests of the children that they spend no time with their father. Given that outcome, it is also not in the best interests of the children nor necessary for me to make proposed orders 9, 10 and 12 - 16 of the orders sought by the father in his Amended Application dated 1 May 2025 (being orders he continued to press).
2. In proposed order 11 of the Amended Application, the father sought an order that he be permitted to send modest gifts, cards, letters and photographs to the children once per month. I was not addressed on this issue by any of the parties at trial. It was not a matter that arose during cross-examination. It is not a matter referred to by Ms E in her report. I therefore decline to make any order, given the matters to which I have referred in this paragraph, and also because I regard it as being in the best interests of the children that they have no communication with their father.
3. Proposed order 17 of the Amended Application sought that each party notify the other of any travel outside Australia. I decline to make such an order. I was not addressed on it. Further, for reasons that I will come to, the mother is to have sole decision-making responsibility for all major long-term issues.
4. Both parties in their Application and Response documents sought the imposition of certain restraints. Again, I was not addressed on this issue at all during the trial by any of the parties. There seems to me to be little need to make any of these orders in circumstances where the father will have no contact with the children and in circumstances where the mother does not pose any risk to the children. I therefore decline to make order 6 as set out in the Amended Response filed by the mother or order 18 as contained in the Amended Application filed by the father.
5. The mother sought an order that she be authorised to provide a copy of these orders to the children's schools, medical professionals, Victoria Police and the Magistrates' Court. The evidence of the mother, which I accept, is that the father has attended the children's schools in the past and threatened members of staff. He has also followed the mother in Coles as recently as November 2024. It is appropriate and in the best interests of the children that the mother be permitted to provide a copy of these orders to schools, police, medical professionals and the Magistrates' Court.

1. The mother sought an order for sole decision-making responsibility for all major long-term issues. The father asked the court to make an order for joint decision-making.
2. These parents do not communicate. In the witness box, the mother described the father as a difficult person to work with. That, in my view having observed him, is a generous characterisation. The father presents as an incredibly difficult individual. He has little insight into his own behaviours. He has little insight into the needs of his children. He constantly interrupts people when speaking. He blames others for decisions he has taken. He repeatedly refers to the mother as a liar. There is simply no way on the evidence before me or from my own observations that these parties could make joint decisions about major long-term issues affecting their children. Given the matters to which I have referred, it is also not in the children's best interests for there to be joint decision-making. In the circumstances, an order will issue that the mother have sole decision-making responsibility for all major long-term issues concerning the children.

1. I have stepped back to consider these reasons and orders as a whole. I am satisfied that these orders are in the best interests of children.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

[1] The delay in publication of these reasons is attributable to a delay in receipt of the transcript.